In the U.S., it may be the case that people are frustrated by the secrecy surrounding the NSA’s internet and phone surveillance activities, but that situation has nothing on what’s happening – or rather, not happening – in the United Kingdom.
At least American lawmakers continue to haul their top intelligence officials over the coals. In the UK, a parliamentary committee decided three months ago that no laws were being broken by the country’s intelligence agency, GCHQ, in the way it got information on British citizens from the NSA. And that, as far as official inquisitiveness is concerned, is about as far as it went.
Through the wall
In a sense, this isn’t surprising. As Edward Snowden revealed, when it comes to global surveillance, no-one can beat the Brits. The UK is probably the most important hub for the undersea cables carrying connectivity around the world – the lines are there for the tapping, so GCHQ does it. The British government has also used a DA-Notice to warn the country’s press off the story, and most have complied (with The Guardian being a notable exception).
Many privacy activists are keen to break through this wall of silence. London-based Privacy International sued the government three months ago, and now a separate alliance called Privacy not Prism is taking a similar case straight to the European Court of Human Rights (ECHR).
Privacy not Prism, which takes in Big Brother Watch, the Open Rights Group, English PEN and the German campaigner Constanze Kurz, launched its campaign on Friday, asking for £20,000 ($32,000) in donations to cover legal fees (I know, that’s unlikely to get them very far). Two days later, they had hit their goal.
As Open Rights Group executive director Jim Killock said in a statement:
“The response… shows that there is overwhelming concern about these revelations, both in the UK and beyond.
“This busts the myth that the UK is unconcerned. While Parliament has failed to debate these issues, the public are personally prepared to donate money from their own pockets to ensure their rights are protected, and the governments’ secret surveillance schemes are held to account.”
So, what’s the point of this second case?
The Privacy International and Privacy not Prism cases are similar, though not identical. In both cases, the activists planned to go to the High Court but got told to approach a secret court called the the Investigatory Powers Tribunal (IPT) instead.
Privacy International stuck with this approach in its quest to get the IPT to declare what GCHQ is doing to be illegal. I asked spokesman Mike Rispoli how that’s working out, three months on:
“At the moment we’re waiting… it’s a secret court so as a result it’s not always the most transparent on what’s happening. We’re just waiting to hear back.
“The one thing that has changed in the past few months is we are looking to see if we can add telecommunications operators to that complaint due to their complicity in allowing the Tempora program. In some form or another they will be added to our complaint.”
Ultimately, if you’re an activist in any European country and you don’t find answers from your national authorities, you can go up the chain to the EU-level courts. Privacy not Prism is basically short-circuiting that process – having decided that there is no effective British oversight of British intelligence activities, the group is going straight to the ECHR in search of a ruling that would find the lack of oversight in the UK to be incompatible with European human rights law.
As Adam Hundt, one of Privacy not Prism’s solicitors, explained it to me:
“We’re asking the courts to declare the statutory regime noncompliant with the ECHR, which the IPT can’t do, even it were sufficiently independent, which we think it isn’t.”
This is a highly unusual approach, and it will be interesting to see how far Privacy not Prism gets with it. That said, it’s clearly a fight worth taking on, as a separate development has shown.
“The cabinet was told nothing”
“The cabinet was told nothing about GCHQ’s Tempora or its US counterpart, the NSA’s Prism, nor about their extraordinary capability to hoover up and store personal emails, voice contact, social networking activity and even internet searches.
“I was also on the national security council [NSC], attended by ministers and the heads of the Secret [Intelligence Service, MI6] and Security Service [MI5], GCHQ and the military. If anyone should have been briefed on Prism and Tempora, it should have been the NSC.
“I do not know whether the prime minister or the foreign secretary (who has oversight of GCHQ) were briefed, but the NSC was not. This lack of information, and therefore accountability, is a warning that the supervision of our intelligence services needs as much updating as their bugging techniques.”